Archive for the ‘Juvenile Justice’ Category

Good news is something that 13 year old Cristian Fernandez has rarely received since his arrest in April of 2011. Today, that all changed.

Judge Mallory Cooper granted a motion filed on Cristian’s behalf by his defense team, led by Hank Coxe which took over the case from Matt Shirk on February 1.

During his tenure as counsel, Shirk had seemingly not even considered the shackling to be a violation of Cristian’s rights, much less bother to file a motion with the court, as Coxe and his team did within the first week of having taking over the case.

Although the motion filed read, in part “the trial court has full discretion over security procedures” Judge Cooper’s decision stated that “It is abundantly clear that the presence of multiple law enforcement officers in the courtroom is more than sufficient to ensure the safety and security of Cristian and others” adding that Cristian posed no risk to the court unrestrained.

Further, the motion states “This court finds the defendant does not have a history of escape and has not created any disturbances or posed a potential threat to anyone in the courtroom during the pendency of his cases. As a result, it is unnecessary to physically restrain the defendant while he is present in the courtroom.”

The State’s response was somewhat guarded, with Assistant State Attorney Mark Caliel saying “I think Judge Cooper has always handled Mr. Fernandez’s case with the utmost discretion” adding that there was no objection to the decision from the State Attorney’s Office.

Whilst there was no mention made of the public pressure applied to the court by supporters of Cristian, they will doubtless be overjoyed by the news. A Facebook event had been created by advocate Melissa Higgins, whereby she asked supporters to email “State Attorney Angela Corey, Jacksonville Sheriff John Rutherford, Judge Mallory Cooper, and Governor Rick Scott to demand that they stop the indiscriminate shackling of 13 year old Cristian Fernandez”. All four were inundated with correspondence from supporters around the world.

Speaking today, Ms. Higgins told this author “I think that it is a really positive sign that Judge Mallory Cooper recognized the profoundly prejudicial impact that shackling Cristian would have at his upcoming criminal trial. Today’s news suggests that some things are finally beginning to look up in a case that has been both tragic and bleak from a number of perspectives from the very beginning. This was a step forward for Jacksonville today, and for the civil and human rights of juveniles across America.”

The decision by Judge Cooper should now be seen as a precedent for all other cases of juveniles being shackled for court appearances, effectively closing the loophole in the Florida Supreme Court’s amendment to Rule 8.100 of the Florida Statute.

California, Connecticut, Illinois, New Mexico, North Dakota, North Carolina, Oregon, and Vermont no longer shackle juvenile defendants as a result of State Supreme Court rulings or legislative action, yet many states still employ the practice.

A petition has been created to address this issue, so that others may be afforded the same humane treatment as Cristian was today.

Jordan Brown was arrested on February 21, 2009 and charged with the murder of his father Chris’ pregnant fiancé, Kenzie Houk and her unborn child in Wampum, PA. He has now been detained for three years without having his case heard.

In early 2011, a petition was started by advocate Melissa Higgins to raise awareness for Jordan’s plight, pointing out, among other things, that his treatment was in direct violation of international law. Close to 4,000 people from around the world showed their support by signing the petition and bringing pressure to bear on Pennsylvania Attorney General Linda Kelly. It was successful.

In August of 2011, Judge Dominick Motto who had originally ruled Jordan would be tried as an adult, reversed his decision and he will, rightfully, now be tried as a juvenile.

On Tuesday, in her 33 page opinion, Superior Court Judge Jacqueline Shogan ruled that the yet to be scheduled trial for Jordan will remain closed to the public and consequently the media, much to the chagrin of the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, the New Castle News and their attorneys.

Part of the ruling stated “denial of public access to the juvenile proceedings at hand serves an important government interest” because “under the facts of the case, there is no alternative short of closure of the juvenile court proceedings which will adequately serve the privacy interests of Jordan.”

The media had argued that preliminary hearings had been open and therefore all subsequent hearings should remain that way. What they fail to understand is that initially Jordan was to be tried as an adult, thereby giving the public access to his pretrial hearings. Their claims that since much of the case had already been aired in public, it should remain that way, are unfounded.

The media’s actions in this matter have been reprehensible. At no time have they showed any concern for Jordan’s well being, made evident by injecting themselves into the case for nothing more than a selfish need to increase circulation of their respective publications.

The objectivity of certain journalists from the aforementioned media (and their editors) has been found wanting since they began reporting on the case and very few have maintained any semblance of journalistic integrity or ethical behavior in that regard.

Jonathan D. Silver’s erroneous complaint that “the information blackout could be so complete that the public might not be able to learn when and whether a hearing has occurred, much less the outcome” is a nonsense which typifies the irresponsible coverage of Jordan’s case from certain quarters.

Frederick N. Frank, attorney for the Pittsburgh Post-Gazette, was quoted as saying “We are disappointed that the Superior Court did not recognize the right of the Post-Gazette to cover this important case under the Constitutional and common law presumption of openness of judicial proceedings”. My suggestion to Fred would be for him to appraise himself of the law as it reads with regard to this matter and the case.

Dennis Elisco, one of Jordan’s attorneys, quite rightly stated “I think it was the right result. It was the result most of us expected. It’s a huge step in the right direction, which is to get the case tried.” So very true.

As yet, no statement has been issued as to whether Judge Shogan’s decision will be appealed by the three media outlets. They have thirty days in which to do so.

Historically, the shackling of prisoners has been a form of punishment or discipline but in more modern times has been used as an instrument of restraint, particularly when moving inmates from one area of a facility to another, or transporting them to and from a facility for court appearances. It has applied to both juveniles and adults but in the last decade, the practice with regard to the shackling of juveniles has received widespread condemnation and deemed a violation of their constitutional (if not human) rights.

As of 2007, 28 states regularly practiced the shackling of juveniles during court appearances. In the last several years alone, there have been numerous instances where the use of shackles has been seen as not only dehumanizing and degrading, but completely unnecessary.

Patricia Puritz, executive director of the National Juvenile Defender Center commented that shackling “is so egregious, so offensive, so unnecessary” and “There is harm to the child and there is also harm to the integrity of the process. These children haven’t even been found guilty of anything.”

A case in point is that of Jordan Brown, who at the age of eleven was arrested and charged with the murder of his father’s fiance and her unborn child in 2009, in Wampum, Pennsylvania.

His appearance in court for his arraignment (and subsequent pre trial hearings) with his small frame shackled both wrist and ankle, alarmed not only his family and advocates against this archaic practice but most rational thinking people as well. His family was told that the he will continue to be shackled in the courtroom until such time as he is brought before a jury at trial, the reason for which is specious at best, as the prosecution would feel a shackled child may influence a jury to be more compassionate than they would like.

In 2011, the Supreme Court of Pennsylvania adopted Rule 139, specifically “to eliminate shackling during a court proceeding in almost every case. Only in the few extreme cases should such restraints be utilized”.

Another juvenile who has been paraded, shackled, before the media and the court is Cristian Fernandez who at age twelve was arrested and charged with the murder of his two-year-old stepbrother in Jacksonville, Florida. Like Jordan, the evidence against him is weak and his behavior whilst detained, exemplary. Yet, he continues to be brought before the court shackled when it is obvious the child poses no threat to anybody whatsoever. Curiously no motion has been filed on his behalf to allow him to appear unrestrained.

The argument for those in support of shackling was essentially rendered moot, when in 2009, the Florida Supreme Court limited the use of shackling juveniles with the amendment (effective January 1, 2010) to Rule 8.100 (General Provisions for Hearings) which reads in part;

Rule 8.100(b)

Instruments of restraint may not be used on a child during court and must be re-moved unless the court makes a finding that both

1. the use of the shackles are necessary due to one of these factors

A. to prevent harm to the child or another

B. the child has a history of disruptive behavior that has placed others in harmful situations or present a substantial risk of risk inflicting harm on themselves or others as evidenced by recent behavior or

C. the child is a flight risk

AND

2. there is no less restrictive alternative that will prevent flight or harm

As stated by the Florida Supreme Court, “We find the indiscriminate shackling of children in Florida courtrooms as described in the NJDC’s Assessment repugnant, degrading, humiliating and contrary to the stated primary purposes of the juvenile justice system and to the principles of therapeutic justice, a concept which this Court has previously been acknowledged.”

The states of California, Connecticut, Illinois, New Mexico, North Dakota, North Carolina, Oregon, and Vermont no longer shackle juvenile defendants as a result of State Supreme Court rulings or legislative action.

In 2010, Justice Milton A. Tingling Jr. of the State Supreme Court in Manhattan found “that the agency’s policy violated the state’s own law on shackling youths in custody”.

There is an obvious and growing trend toward amending juvenile procedures in the courtroom and it is my hope that you will give this petition the consideration it deserves and sign it so as this violation of not only law, but the rights of all juvenile defendants will be recognized in future.

At the behest of court appointed guardian ad litem, Hugh Cotney, a motion was filed in late January to have Public Defender Matt Shirk replaced as counsel for Cristian Fernandez. While the team of prominent attorneys led by Hank Coxe are not new to the case, having been involved with seeking to have the charge of sexual battery filed against Cristian dismissed, they are eminently more qualified to defend him.

Shirk’s initial response was muted before lamenting “It has taken a long time to build a trust in the attorney-client relationship”. He knew his time was nigh but that didn’t stop him from baring his claws with “Let’s look at it for what it is. If I were in private practice, you live by the almighty dollar” which is curious, given his political affiliations and background. In addition, he churlishly suggested the new attorneys were only interested in taking the case due to its high profile and that it was good for drumming up business.

Coxe responded unequivocally “We are collectively – and incredibly – disappointed with Mr. Shirk’s perception of our profession and its obligations”. A more than reasonable assessment.

Shirk on Facebook, Feb 3

Shirk had resorted previously to Facebook in an attempt to placate supporters of Cristian and did so again on the Save Cristian Fernandez page (left). Again, some were grateful for his efforts and others less forgiving with asides such as “Amen!”, “YES!” and “Great news!” in response to the news of his removal. Shirk’s ineffectual “I think you are underestimating how hard my office worked on behalf of Cristian” was lost on many, with some knowing how little he had done for Cristian by his own admission in an email to the State Attorney’s Office.

Lost in a world of his own self importance and social gatherings to strengthen his re-election bid, Shirk could not even file a motion with the court to have Cristian appear unshackled during pre-trial hearings. Yet again it was left to supporters to bring pressure to bare and petition the court to see that it is done.

He spoke often of the “remarkable little boy” he was supposed to be defending against a villainous prosecutor and after promising (along with investigator Paul Pinkham) to attend the February 8th rally for Cristian at the Duval County Courthouse, he not only failed to appear but offered that it had “not been a good day” and that “he had some things that came up” when questioned as to his absence. It seems his caring for Cristian had ceased the day he was removed from the case, if not earlier.

The “$200,000 to $300,000 in future costs” which Shirk says his replacements will save the taxpayer should go part way toward footing the bill for the $230,000 he and his office were paid, essentially under false pretenses.

With Shirk out of the picture and a team of well credentialed, experienced attorneys to defend him, the future is looking somewhat brighter for Cristian Fernandez.

Picture this. You are a twelve-year-old sitting in jail charged with first degree murder, a crime you maintain that you did not commit, and the public defender assigned the task of vindicating you has too close an association with the person wanting you prosecuted to the full extent of the law.

It would not exactly instil you with overwhelming confidence, would it?

Such is the situation for Cristian Fernandez, a child whose future is resting in the hands of 4th Judicial Circuit Public Defender Matt Shirk. Although Cristian may be oblivious to the relationship between Shirk and State Attorney Angela Corey, those who aren’t view it as a conflict of interest.

Their association has been a long and interesting one. From Shirk completing his internship “working under the direct tutelage of Angela Corey” to publicly supporting each other as Republicans seeking re-election to their respective offices. Shirk is North Florida’s first Republican to be elected to the office he now holds.

On December 6, 2011, he launched a fund raising campaign at the home of Republican money man Mike Hightower which was co-hosted by none other than Angela Corey. How, or why, Shirk did not see his ill conceived notion to have Corey present as a conflict of interest escapes me, particularly at a time when Corey was doing her utmost to have Shirk accept a plea deal on behalf of his client.

The man Shirk surprisingly defeated in the 2008 election, Bill White, is on record as saying “Both should have known better to have her displayed as a co-host. It damages the image of the Public Defender’s Office. You should be thinking of those things when you are in public office.” This point was clearly lost on Shirk and, not for the first time, his judgement has been brought into question.

In January of 2009, Shirk joined Corey in visiting Nassau and Clay counties for the latter’s swearing in ceremonies. Given the disparate duties for which they were elected, it quite rightly raised more than a few eyebrows.

In February of the same year the President of the National Association of Criminal Defense Lawyers, John Wesley Hall, referred to Shirk as someone “who cleaned out the experienced death penalty lawyers to save money, a public defender who ran with the endorsement of the police union and a personal friend of the DA on a campaign to save money on public defense” adding “Doesn’t it violate the Sixth Amendment for an accused person to have a public defender who was elected with an inherent conflict of interest of endorsements by the police union and promises(essentially) to not be zealous in representing indigent clients?” Corey herself was endorsed by the very same police union during her campaign, making Hall’s observations difficult to counter.

To Shirk’s credit, he has shown much compassion and an understanding of the “extenuating circumstances” surrounding Cristian’s case for which Corey has shown complete disregard. He is also to be commended for believing in Cristian’s innocence and rejecting the State’s deal which involved a plea to second degree murder. Yet, like the Jacksonville media, he is remiss in not correcting the misinformation disseminated by Corey since Cristian’s arrest in March of last year.

Matt Shirk's post on Facebook

Supporters of Cristian have been voicing their concerns regarding the defense and its handling of his case on social media internet sites. The Save Cristian Fernandez page on Facebook is one such site, with one supporter suggesting “good lawyers could definitely win this” and another alluding to the perceived conflict of interest when saying “[there] must be one lawyer out there you can trust”.

Shirk posted a genial response and offered supporters the opportunity to email him with questions which he is “allowed to answer”. He then tried to allay the fears of many by proclaiming “I think people will be surprised when they hear ALL the true facts”. For Cristian’s sake, we can only hope he and his team have left no stone unturned in their search for the truth.

Fortunately, the State’s case is not a particularly strong one, evidenced by Corey seeking an indictment on a new charge of sexual battery when her hopes for a plea deal dissipated. A motion was filed by the defense last Friday seeking dismissal of a “defective indictment” and a plea of not guilty was entered on Cristian’s behalf. Judge Mallory Cooper set a new hearing date for February 8.

A petition asking the Court to reverse its decision to have Cristian tried as an adult now has over 178,000 signatures from people showing their support. Cristian will turn thirteen this Saturday, January 14 and a ‘Cards for Cristian Fernandez’ page has been created on Facebook to offer him “comfort and hope”. Cards can be mailed to:

The case of twelve-year-old Cristian Fernandez limped frustratingly onward again this past Friday, January 6th, with his indictment on a charge of sexual battery. The latest charge is in addition to that of Murder in the First Degree and Aggravated Child Abuse for which he was indicted for the death of his two-year-old stepbrother, David Galarriago, on March 14 of 2011. It is alleged to have involved another (as yet unnamed) stepbrother.

According to The Florida Times-Union “the state has been preparing the sexual battery case since last summer” and that “prosecutors delayed seeking the indictment at the request of the defense during plea negotiations” which the defense rejected, opting instead to go to trial. Just why the defense requested the delay is unclear and my efforts to seek clarification from Public Defender Matt Shirk, who is handling Cristian’s case, have gone unanswered.

Despite claims to the contrary, the latest charge was indeed used as a bargaining chip by the State Attorney’s Office (SAO) during plea deal negotiations. Assistant State Attorney Mark Caliel admitted as much, saying “When negotiations broke down, we made it clear we were left with no alternative. We can’t ignore our additional victim” which is curious, given that Caliel and the SAO had ignored the additional victim for quite sometime.

State Attorney Angela Corey said on Friday that she has “an obligation to victims of crime to file charges when they can be proved beyond a reasonable doubt” and “without regard to the extenuating circumstances involved with the defendant”. The question is; can they be proven beyond reasonable doubt, other than in Corey’s own mind? I would suggest not.

Her total disregard of these “extenuating circumstances” and Cristian’s needs are palpable, as is her bloody-mindedness in seeking his conviction on all charges. For her to even attempt to suggest she has “compassion for Cristian” is an absurdity. She even goes so far as to eschew one of her very own Episcopalian tenets by saying “it’s not my job to forgive”.

Corey has had constant difficulty in speaking honestly about this case. Last October she erroneously claimed “No one’s ever talked about life in prison. The rumors are rampant about that”. That is a lie when you consider the mandatory penalty for first degree murder in Florida is life imprisonment without the possibility of parole.

In December she told the media “In the juvenile system, we can only incarcerate or have him contained for not even two years” which again is untrue. The Southern Poverty Law Center corrected her in a recent article stating the juvenile system has “power to detain a child as long as necessary” adding its courts “can retain jurisdiction over children until the age of 21”.

The SAO is still hoping for a resolution to the case prior to trial but that looks unlikely. Cristian will be thirteen years of age when he revisits Duval County Courthouse on February 27th and if convicted, will be the youngest person ever sentenced to life without the possibility of parole in US history.

A petition seeking to have Corey removed from office was started last month, with more than 1200 people from all parts of the world having signed as of this writing.